In two recent cases, the Court was asked to consider whether the operating air carrier, Primera Air Scandinavia A/S, was liable to pay the passengers compensation due to a delay. Primera Air refused to pay compensation to the passengers concerned, whose arrival at the airport of destination was delayed by 11 and 9.46 hours, respectively.

The cases referred to in the following are:

  • The Supreme Court of Denmark No 39/2015
  • The Supreme Court of Denmark No 41/2015

Technical errors

The delays were caused by a technical error on both planes. The position of the flaps on plane 1 did not appear on the correct switches and plane 2 experienced a fuel leakage.

The rules

According to article 6 and 7 of regulation (EC) No 261/2004, passengers have a right to compensation in case of a flight delay.

The Court of Justice of the European Union (CJEU) has already in the famous cases Sturgeon and Böck determined that passengers can plead the compensation rules of the regulation.

Furthermore, if passengers arrive at their destination 3 hours or more after the expected time of arrival, they are also entitled to compensation.

However, according to article 5 (3) of the regulation an operating air carrier is not obliged to pay compensation if it can prove that the cancellation was caused by extraordinary circumstances. The onus of proof was therefore on Primera Air to document that the technical errors could not have been avoided even if all reasonable measures had been taken.

According to the preamble section 14, extraordinary circumstances may occur in cases of political instability, meteorological conditions, security risks, unexpected flight safety shortcoming and strikes that affect the operation of the operating air carrier. The list is non-exhaustive.

The Court therefore had to determine whether the technical errors were "extraordinary circumstances" as understood in the regulation.

Extraordinary circumstances?

Due to the rough element in which the air carriers operate, technical errors must be expected of a certain frequency. Operating air carriers need ongoing maintenance to ensure safety on board. Technical errors that are caused by a lack of maintenance by the operating air carrier are not encompassed in the definition of extraordinary circumstances.

Due to the fact that article 5 (3) is an exception to the right to compensation, it is interpreted in a narrow manner.

On this basis, the Court ruled that the technical errors could not be seen as "extraordinary". They were by the Court regarded as ordinary errors which are to be expected in the field of operating air carriers and the errors were not outside of Primera Air's control. The possibility of the errors being hidden manufacturing flaws could not change this decision.

The passengers therefore had the right to a compensation in accordance with article 5 (3) and 7 (1) (b) of EUR 400.

The Court's ruling is expected to have a major significance in similar cases. Currently, there are no less than 1,300 similar cases in the county courts which have been suspended pending the outcome of the two cases in the Supreme Court.

The decision is in line with the decision of the EU-judgment and subsequent decisions in other EU-Member States. Thus, the decision is not a surprise.